What is the Assumption of Risk Doctrine in Personal Injury Lawsuits?
Tips to Overcome the Assumption of Risk Defense in Tort Claims
You may have to do more than prove the defendant’s negligence caused your injuries to recover damages in a personal injury case. Sometimes you must resist an allegation that you assumed the risk of harm.
The assumption of risk doctrine is a defense raised in negligence actions under tort law. And this legal principle is a form of victim blaming where the defendant says, “You should have known you could get hurt.”
Depending on whether the state with jurisdiction over your claim follows the comparative negligence or contributory negligence doctrine, a successful assumption of the risk defense may bar you from recovering a single cent – even when the defendant admits its acts harmed you.
This legal doctrine says you cannot knowingly and voluntarily expose yourself to a hazardous condition or participate in a dangerous activity, then recover damages against another person or business if you suffer the specific loss, injury, or damage you knew could happen. If the court finds you assumed the risk of danger, the defendant does not owe you a legal duty. And your negligence claim fails.
Keep reading for an overview of the assumption of risk doctrine, including tips for overcoming this defense in an auto accident, premises liability, product liability, or other personal injury action.
Jury Instructions: Defining Assumption of Risk
The model (pattern) civil jury instructions are the starting point for understanding the definition of assumption of the risk.
In Virginia, Instruction No. 6.100 is titled, Definition of Assumption of the Risk. It says:
If you find by the greater weight of the evidence that the plaintiff fully understood the nature and extent of a known danger, and if he voluntarily exposed himself to it, he assumed the risk of injuring himself from that danger. The plaintiff cannot recover for injuries that proximately resulted from assuming the risk of a known danger.
This jury charge comes from the Virginia Supreme Court’s holding in Davis v. Sykes, 202 Va. 952 (1961).
Other states have similar jury instructions for use when the defendant raises an assumption of the risk defense. Make sure you review them when developing and analyzing the evidence in your case.
Assumption of Risk Types
Courts divide the assumption of the risk doctrine into two types: express assumption of the risk and implied assumption of the risk.
Express Assumption of Risk (including Pre-Injury Releases and Liability Waivers)
Express assumption of risk involves an advance oral or written contract between two or more parties (persons, businesses, etc.).
This contract (called a liability waiver, hold harmless agreement, or general release of liability) says the person participating in the activity understands the risks of doing so and agrees not to sue the owner or operator for injury, loss, or damage. In other words, you contractually agree to waive your right to sue for injuries or damages before participating in the activity or going on the property.
Typically you are asked to sign these contracts for voluntary activities with an above-average risk of harm. Examples of these pre-injury releases you may be familiar with include the following:
- A gym requires members to sign a contract that says members undertake all exercises at their own risk, and the gym cannot be liable for any claims, demands, injuries, damages, or causes of action resulting from the active or passive negligence of the gym’s employees.
- An orthopedic surgeon forces patients to sign contracts where the patient agrees to assume all risks connected to the medical diagnosis and treatment (including surgery).
- A daycare center requires parents to sign an agreement waiving liability for the childcare provider as a condition of admission.
- A parent signs a liability waiver so their child can play in a recreational soccer league or attend a birthday party at the local go-kart facility.
- A concert ticket says you assume all risks of injury by attending.
- A vendor at the beach requires you to sign a liability waiver before you ride a jet ski or hang glide.
Implied Assumption of Risk
Implied assumption of the risk is more challenging for defendants to prove because it does not involve an advance agreement between the parties.
Instead, the defendant must use your actions to prove you had actual knowledge of the nature and extent of the risk that harmed you and deliberately acted anyway.
Generally, the danger must be “open and obvious” for an implied assumption of the risk defense to hold. And the risks of injury or harm expected in the given activity.
Examples of situations where the implied assumption of risk defense may apply include the following:
- Attending a baseball game where the batters may hit foul balls into the stands or a hockey game where the players may hit the puck into the crowd
- Getting into the car with a driver you know is intoxicated (drunk)
- Providing nursing care to a patient you know has dementia or Alzheimer’s and becomes irritated
- Diving into a pool you know is shallow.
- Going onto a property with dangerous chemicals or fires when signage warns against trespassing or says you may encounter dangerous animals or substances
- Moving barricades to enter a specific area of a parking lot or road
- Participating in a sporting event such as football, basketball, tennis, or skiing
- Continuing to use equipment or machinery you know is broken.
- Getting in a pool with no lifeguard when you cannot swim.
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Deadlines and Burden of Proof Issues with the Assumption of Risk Defense
Assumption of the risk is an affirmative defense under the common law and federal rules of civil procedure.
An affirmative defense to a civil lawsuit is a fact or set of facts which, if proven, excuses the defendant’s otherwise negligent acts or bars the plaintiff from recovery. These defenses come from case law or statutes.
Other examples of affirmative defenses include the following:
- Accord and satisfaction (such as executing a compromise and release)
- Arbitration and award
- Contributory negligence
- Discharge of the defendant’s obligation in bankruptcy
- Duress or undue influence
- Estoppel
- Failure of consideration
- Failure to mitigate damages (by the plaintiff)
- Fraud
- Illegality
- Incompetency (such as when a child enters a contract)
- Injury by a fellow servant
- Laches
- License (permission to use the property)
- Payment of the debt
- Prior release of the claim
- Res judicata
- Self-defense
- Statute of frauds
- Statute of limitations
- Waiver
- Workers comp as the exclusive remedy (usually the defendant will file a plea in bar arguing that you can recover workers compensation benefits only for an occupational injury or illness
- Usury
The defendant must satisfy its burden of proving an affirmative defense by a preponderance of the evidence. This standard also applies to the assumption of the risk doctrine.
Specifically, the defendant must introduce evidence showing that you:
- Fully appreciated the nature and the extent of a known danger;
- Voluntarily exposed yourself to a danger or hazard; and
- Suffered an injury from the assumed danger.
In addition, the defendant must raise the specific defense of assumption of risk in its initial pleadings (just as you must give notice of claims in the complaint), or risk waiving the defense at trial. This means the defendant should plead assumption of risk in its answer if it tends to rely on this legal doctrine in dispositive motions or at trial.
Courts have held that this rule prevents “surprise and prejudice at trial from late revelation of unanticipated legal theories.” Some exceptions, however, exist, such as when you failed to disclose some facts in the complaint. Then the court may allow the defendant to raise an assumption of the risk defense at trial.
Does the Judge or Jury Decide if I Assumed the Risk of a Specific Danger or Hazard?
Whether the defendant proves an assumption of risk is a question of fact, not law.
This means the jury will decide whether you understood the risk involved, voluntarily accepted the danger associated with the risk, and suffered injury from that specific risk.
Can I Recover Money Damages if the Judge or Jury Finds I Voluntarily Assumed the Risk of Injury?
No.
In Virginia, your voluntary assumption of the risk of injury from a known danger is an absolute bar to recovering damages for a defendant’s negligence in causing you harm.
But in states with comparative negligence, you may still recover damages for injury or loss if you assume the risk. The judge or jury, however, may reduce the amount you receive based on your assumption of the risk.
What is the Difference Between the Contributory Negligence and Assumption of Risk Defenses?
The defense of assumption of risk is similar to the defense of contributory negligence. Indeed, defendants often plead these two defenses together.
But courts have distinguished the two defenses in two ways.
First, contributory negligence is carelessness, while the assumption of the risk is venturousness. Free will is a critical part of establishing an assumption of risk defense.
Second, courts apply an objective reasonable person test to contributory negligence, while assumption of the risk is a subjective test – what the particular plaintiff (accident victim) sees, knows, understands, and appreciates before exposing themself to the danger.
In this second respect, defendants will have more difficulty proving assumption of the risk compared to contributory negligence.
How to Defeat an Express Assumption of the Risk Defense
You have several ways to attack an assumption of risk defense.
First, review the liability waiver (if in writing) to see if it addresses negligence. Some courts require specific language before upholding a pre-injury release.
Second, examine whether the risk that injured you was the specific risk you knew and accepted.
For example, suppose you signed a hold harmless agreement with an amusement park before riding a roller coaster.
The agreement may protect the amusement park from injuries suffered during a regular ride. But an express assumption of risk defense will fail if your seat belt breaks, causing you to fall from the roller coaster because you did not know and appreciate that risk when signing the exculpatory agreement.
Third, see if the facts establish that the defendant’s acts were gross negligence. Many courts will not enforce express liability waivers for gross negligence (including reckless, willful, or wanton conduct) or intentional acts.
Fourth, review state and federal regulations to see if any law overrules the liability waiver. Some types of businesses cannot require pre-injury releases under the law.
Fifth, argue that the contract violates public policy and is unenforceable.
Sixth, review the pleadings to see if the defendant raised assumption of risk in its answer to your complaint. If not, argue that the defendant waived the defense.
Seventh, point out that you were at a severe disadvantage in negotiating the contract and had no choice but to sign, making it a contract of adhesion. Some courts may reject express assumption of the risk defenses based on these one-sided agreements.
Ways to Counter the Implied Assumption of the Risk Defense
In these cases, you do not have an oral or written contract to analyze.
Instead, focus on the fact that you did not have actual notice or knowledge of the specific risk that injured you.
Does the Assumption of the Risk Defense Apply to Workers Compensation Cases?
No.
The assumption of the risk doctrine defeated many tort claims brought by injured employees before states enacted workers compensation laws. Indeed, the more dangerous your job, the more likely the employer could raise an implied assumption of the risk defense to beat your case.
In response, states passed workers compensation laws where employers and insurers (and claim administrators such as Sedgwick and Gallagher Bassett) give up the assumption of the risk defense (and others). In return, injured employees cannot bring a civil action against their employer for injuries or recover money for pain and suffering.
Our Personal Injury Lawyers Can Help You Overcome an Assumption of Risk Defense
A successful assumption of risk defense lets a negligent defendant avoid responsibility for your injuries and blame you for the loss.
Fortunately, you may be able to fight back against this defense.
You can look for a way to protect your legal rights alone.
Or you can hire one of Virginia’s best personal injury lawyers to focus on your case while you heal. Selecting the proper venue (location) to file a lawsuit is critical to getting a jury that won’t blame you for the injuries. And an attorney can help you make these strategic decisions.
Call us today to start: (804) 251-1620 or (757) 810-5614
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